In The Supreme Court of Nigeria
On Friday, the 27th day of April, 1990
S.C. 193/1987
Between
Joshua Ogunleye ....... Applicant
And
Babatayo Oni ....... Respondent
Judgment of the Court
Delivered By
Belgore, J.S.C.
The plaintiff/appellant took out a writ claiming before the High Court of Oyo State, sitting at Ilesha in Ilesha Judicial Division, the sum of N25,000.00 from the defendant/respondent for the act of trespass on a piece of land at Osu by the defendant. He also asked for perpetual injunction against the defendant, his servants, agents, privies or any one claiming through the defendant from any further act of trespass on the land.
The appellant based his claim on two premises, to wit, native law and custom, and on statutory certificate of occupancy granted him by the Governor of Oyo State on the same land on 27th day of June, 1983. The issues involved in the pleadings could be seen clearly by reproducing parts of the statement of claim and Statement of Defence:-
Statement of Claim
(1) .....
(2) .....
(3) The plaintiff avers that on or about 16th day of January, 1978 he was granted a parcel of land at ARIKESE Street, along Ife/Ilesa Road, Osu by the Osu Community.
(4) The plaintiff avers that the grant was made under Native Law and Custom and the grant was evidenced by a document.
(5) Plaintiff avers that the land granted him measured about 200 feet and faced Ife/Ilesa Road.
(6) Plaintiff avers that the grant was made to him to build a petrol station.
(7) Plaintiff avers that he immediately went into possession and started to exercise all acts of ownership without anyone disturbing his possession or ownership thereof.
(8) Plaintiff avers that he caused the land granted him to be surveyed by A.B. Apatira, who prepared him a Survey Plan 2142. Plaintiff will rely on this Survey Plan at the hearing of the case.
(9) Plaintiff avers that he later applied for a certificate of occupancy and was granted one dated 27th day of June 1983 and registered as No. 30/30/2514 of the Lands Registry in the office of Ibadan (Plaintiff pleads the certificate of occupancy).
(10) Plaintiff will contend that on his application for certificate of occupancy that his claim in respect of the land was advertised and that there was no objection filed to his application.
(11) Plaintiff avers that he caused to be carried onto the land BLOCKS and lorry loads of GRAVEL towards constructing a petrol station for which purpose the land was granted him.
(12) Plaintiff avers that on or about the 12th day of February, 1984, when he went to the land in dispute found that someone has gone to the land with a caterpillar damaged all his Blocks, Survey Pillars and dispersed the lorry loads of gravels on the land.
(13) Plaintiff avers that on his inquiry found that it was the defendant who was responsible for the trespass and caused the damages.
(14) Plaintiff avers that he made the defendant understand that he would pay for the damages he caused the plaintiff by committing the acts of trespass enumerated in paragraph (12) above.
(15) The plaintiff avers that on or about 28th day of February, 1984, the defendant caused one L. Olufemi Komolafe (Solicitor) to write the plaintiff (The letter of 28/2/84 by Mr. L.O. Komolafe is pleaded).
(16) The plaintiff avers that unless, the defendant, his servants, agents, privies or any one claiming for or through the defendant are restrained, they may continue to go to the land to commit further acts of trespass.''
As against this statement of claim is a statement of defence, which from paragraph 3 makes the following disclosures in its averments:-
(3) The defendant denies paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 16 of the plaintiff's Statement of Claim and therefore puts the plaintiff to the strictest proof thereof.
(4) With reference to paragraph 3 of the plaintiff's Statement of Claim, the defendant avers that the parcel of land purportedly granted to the plaintiff by the Osu Community on or about the 16th day of January, 1978, included and/or embraced the defendant's land situate, lying and being at ARIKESE/AHERE Street, Oke Omi, along Ilesa/Ife Road, Osu, in the Atakumosa Local Government Area of Oyo State of Nigeria.
(5) The defendant's said land at Arikese/Ahere Street, Oke Omi, Osu, is as shown on plan No. AAW/OY/5/84 dated the 2nd day of July, 1984 and drawn by Akin, A.A. Williams, Licensed Surveyor and attached herewith and marked Exhibit 'A'
(6) The boundary of the defendant's aforementioned land is as shown on the survey plan marked Exhibit 'A' and is as follows:
On the first side by Ilesa/lfe Road.
On the second side by Simeon's house/Breadfruit tree.
On the third side by a coconut tree.
(7) When the defendant came from Lagos on or about the 12th day of February, 1984, the defendant visited the land in dispute as the defendant used to do since the death of his father on November 15, 1947, but to the defendant's surprise, the defendant observed that some quantity of laterite had been deposited on the land. The defendant enquired from his relations at Osu about the strange laterite found on the land but none of them knew the person who deposited it there. Some of the defendant's relations even thought it was the defendant himself who deposited the laterite on the land in dispute in preparation for the defendant's proposed new building.
(8) On the same 12th day of February, 1984, the defendant hired a Caterpillar to level up the laterite deposited on the defendant's land together with the debris and/or ruins of the defendant's father's old building thereon in full preparation for the construction of the defendant's proposed new building.
(9) Also simultaneously on the 12th day of February, 1984, the defendant went to Ilesa and bargained with a contractor trading under the name and style of Rowos and Company Nigeria Limited to reconstruct a standard canal at the back boundary of the land in dispute so as to allow for free flow of water or easy drainage and run-off from the surrounding swampy terrain into the main gutter of the Ilesa/Ife Road which passes through the frontage of the defendant's land.
(10) The defendant avers that the sum of two thousand and seven hundred Naira (N2,700.00) was paid to the said Rowos and Company (Nig.) Limited for effecting the construction of the canal and in respect thereof a receipt was issued to the defendant.
(11) On the 13th day of February, 1984 the defendant caused some quantity of gravel to be deposited on his own land.
(12) On the 14th day of February, 1984, there was a meeting of the five wards at Oke-Omi, Osu in Chief Ejemo's house to which the defendant's uncle, Mr. Theophillus Ola-Oluwa was invited.
(13) The defendant says that it was at that meeting of the five wards that the defendant's uncle, Mr. Theophillus Ola-Oluwa was sent to the defendant by Chief Ejemo and some elders for the first time ever that the defendant should please permit the plaintiff to construct a petrol station on the land in dispute, as such a commercial venture by the plaintiff would bring further development to the Osu township.
(14) The defendant's uncle was amazed to learn about the message he was requested to carry to the defendant and had to cleverly dodge the said Chief Ejemo of Osu and the elders present by suggesting to them that it would appear more proper if a delegation of four people was sent to the defendant instead of entrusting him alone with the message but quickly added that he had his misgivings that such a delegation might not even yield any fruitful result as he knew very well that the defendant would not be prepared to yield an inch of the land in dispute to anybody.
(15) The defendant later came to know that it was the plaintiff who was responsible for depositing laterite on the land in dispute as found there on the 12th day of February, 1984, by the defendant.
(16) On the 15th day of February, 1984, when the defendant came back to Osu from Lagos, the defendant went on the land and found that the plaintiff had tampered with the gravel which the defendant deposited thereon on 13-2-84. The defendant further discovered that either the plaintiff and/or his agents, servants or privies had damaged, destroyed and completely defaced the canal constructed by the defendant along the back side of the boundaries of the land in dispute. The defendant lodged a complaint with the police at Osu in respect of the various acts of trespass committed on the defendant's land by the plaintiff.
(17) The defendant avers that the plaintiff further trespassed on the land in dispute on the 4th day of March, 1984, by depositing about one hundred concrete cement blocks thereon apparently to disturb the defendant from effectively carrying on with his building project on the said land. But before then, the defendant had briefed his lawyer, Mr. L. Olufemi Komolafe, to write a warning letter to the plaintiff about his acts of trespass on the land but the plaintiff failed to heed the warning by depositing the cement blocks thereon. The plaintiff's cement blocks are still on the land in dispute by now.
(18) As a result of the plaintiff's various acts of trespass on the defendant's land, the defendant caused an action to be instituted against the plaintiff at the ilesa High Court of Justice in Suit No. HIL/19/84. BABATAYO ONI versus JOSHUA OGUNLEYE. The defendant therefore avers that the land in dispute in the present suit is the same as the land in Suit No. HIL/19/84 where the defendant as plaintiff also tiled a plan of the land in dispute. The plaintiff was personally served with the defendant's Writ of Summons in Suit No. HIL/19/84 on 7-3-84 at Osu.
(19) The defendant avers that the defendant's land is within the land purportedly granted to the plaintiff by the Osu Community on 16-1-78 as claimed by him.
(20) The defendant avers that the area being claimed by the defendant and which forms the subject-matter of dispute between the defendant and the plaintiff is almost triangular in shape save for a minor bulge towards the middle of the side facing Ilesa/Ife Federal Highway which was so demarcated in accordance with the survey rules.
(21) The defendant avers that the entire Osu Community has no land of its own at Osu which it can grant to any one at all.
(22) The entire Osu Community was made up of a conglomeration of Seven main distinct Descent groups and/or settlement which came to converge at separate locations and points within Oso township at different times and dates.
(23) The said Descent groups are traditionally classified as follows:
(i) The descendants of the Ogboni of Ilesa who settled at ARIKESEI AHERE where the land in dispute is situate.
(ii) The Ogidigbasa/Aguja descendant group. These comprised people from Okesa Street. Ilesa and they either belonged to the Obanla Chieftaine',' or the Ejemo chieftaincy of Okesa Street, Ilesa. The defendant's grandfather, Ogunloke-Odo Ifaturoti, became the second Ejomo of Aguja, Osu, between 1941 and 1952 when he died.
(iii) There was the Afon/Ikobi descendants group who settled at Ikobi, Afon and Oke-Oja Street in Osu. They were the direct descendants of the Owa-Obokun Adimula of Ijesa land.
(iv) There was the Imelejo descendants group who settled at Imelejo Street, Osu.
(v) The Ibo descendants group who were partly members of the Loro Chieftaincy family of Uesa. They settled at Ibo Street at Osu.
(vi) The Obanifon descendants group. They forrned part of both the Odole/Arapate Chieftaincy groups at Ilesa and they settled at Osu.
(vii) Finally, there were the Elemoso and Ajido descendants groups who settled who settled at Elemoso Street, and Ajido Street respectively.
(24) The defendant avers that the ancestors of these descent groups had been living severally and jointly in their respective areas of settlements until recent years when the Owa Obokun Adimula of Ijesaland first appointed one of his sons as the Loja of the entire Osu Community for administrative purposes only. The present Chief Omolade Adeyokunnu was the second Loja of Osu. The Loja of Osu is not a landed gentry; he has no land anywhere at Osu or its environs.
(25) The defendant says that these separate and distinct descent groups became the lawful owners of their individual various areas of settlements within the township of Osu to the exclusion of any other descent group.
(26) The defendant further says that as each descent group started to expand in their own individual sectors of the town, they later began to inter-woven through grants and acquisition of land for building and farming purposes.
(27) The defendant's ancestors and family belong to the Ogidigbasa/Aguja descendants group who first settled at Odidigbasa/Aguja at Osu.
(28) The land in dispute was originally owned by the Ahere/Arikese people of Osu. The defendant's father called Ezekiel Oni Aro Ifaturoti took a grant of the said land from the Ahere/Arikese people under Native Law and Custom in the year 1936.
(29) Odofin Elegbeleye was the head of the Ahere/Arikese people of Oke-Omi, Osu at the time the defendant's father acquired the land in dispute.
(30) The defendant avers that the grant made to his father by the Ahere/Arikese descent group was an absolute one and is not subject to any reversible principle of law.
(31) The defendant's father paid all the customary gifts in respect of the grant to the Ahere/Arikese people. These included a sum of £1 :5s. (now N2.50); Kola-nuts, palm-wine and one bottle of Dry Gin.
(32) The defendant avers that since the land was granted to his father in 1936, his father had been in possession thereof at all material times for many years.
(33) The defendant's father exercised various acts of ownership on the land in dispute and erected a house thereon sometimes in 1936 when the grant was made to him.
(34) The house built on the land by the defendant's father comprised two large shops in the front and four living rooms with a separate kitchen and what may be called an old type of bathroom at the back yard.
(35) The defendant's father's house on the land in dispute was roofed with corrugated iron sheets-a rare thing at Osu by that time. On the day the house was roofed, plenty of food and drinks were prepared and served to the people of Ahere/Arikese Quarters. At that time in 1936 very few houses were roofed with corrugated iron sheets at Osu.
(36) Many people had lived in the house built on the disputed land before and these included the following people:-
(i) One Kian, an Ijebu man, who was a goldsmith by profession. Re lived in the house for several years between 1941 and 1956.
(ii) Messrs. Bodunrin Arimoro and Asunni Olusesi who lived there sometimes between 1942 and 1946.
(iii) Other members of the defendant's family also lived in the house between 1936 and 1958.
(37) The defendant's father died on the 15th day of November, 1947 leaving behind him many children. Among them are Mrs. Rebecca Eto Famurewa, Jocob Sunday Oni, Folorunso Oni, Olaniyi Oni and the defendant. The defendant's father also left behind him many personal and real properties including the house built on the now disputed piece or parcel of land.
(38) At the death of the defendant's father his personal and real properties were shared among his children in accordance with Ijesa Native Law and Custom as applicable at Osu and the land in dispute together with the house thereon then devolved on the defendant by way of inheritance under Native Law and Custom to the exclusion of all the other children of the defendant's father.
(39) The defendant avers that he always looked after the land and house and was responsible for clearing its surrounding premises after he inherited same from his late father and entered into immediate occupation and/or possession thereof.
(40) The said house which was built of mud wall and which was surrounded by swamps later collapsed on or about the year 1958. The defendant thereafter removed the iron sheets and the roofing plants, doors and windows of the house for preservation until the defendant would be strong enough to rebuild same on a very strong foundation.
(41) Between 1958 and 1959 the defendant was a student of Apostolic Teacher Training College, Ilesa and was not in a position to rebuild the collapsed house but continued to take care of the premises personally by clearing the weeds thereof. Sometimes the defendant used to engage the services of hired labourers or close relations to help clear the premises of weeds.
(42) At all material times, the debris or ruins of the building walls were still discernable on the land in dispute when the premises were being cleared of weeds and many people at Osu used to praise the defendant for all his efforts in taking care of the land and pray that God would spare the defendant's life and give him strength to accomplish his desire and wish to rebuild the house.
(43) In the year 1976, when the defendant wanted to start a new building on the land in dispute, the present Ilesa/lfe Road was still under construction and it was not then known how much of the land would be affected by the new road, the defendant was constrained to refrain from continuing with the building project as it was rumoured that all the houses and lands along the present Ilesa/lfe Federal Highway were going to be affected by the new construction.
(44) The defendant says that after the Ilesa/Ife road was completed and it became certain that the defendant's land was not seriously affected, the defendant commenced the architectural designs of his proposed new building on the land.
(45) The defendant eventually submitted the plan of his proposed building on the land in dispute to the Atakumosa Local Planning Authority for approval. The defendant has since got an approved Building Plan in respect of the said piece or parcel of land. The defendant will rely on the said Building Plan at the trial of this suit.
(46) The defendant avers that under the Osu Native Law and Custom, once an absolute grant of any land is made to a person, the principle of reversion will not apply unless that person has no issue surviving him or has no blood relation of his own.
(47) When the defendant became worried as to the boldness of the plaintiff in his persistent acts of trespass on the defendant's land after the defendant's solicitor's warning letter, the defendant was forced to make further enquiries during which the defendant learnt it was probable that the plaintiff might have fraudulently and surreptitiously obtained a purported grant of the land in dispute from certain people at Osu. The defendant further learnt that it was probable that the plaintiff had relied on such a mischievious purported grant to obtain a Statutory Certificate of Occupancy in respect of the land.
(48) As a result of the information gathered, the defendant went to the Ministry of Works and Housing (Lands Division) to conduct a search on 9-3-84 for which the defendant paid a receipted search-fee of Ten Naira (N10.00).
(49) The defendant avers that the search conducted by him reveals the following facts:-
(i) That the plaintiff has been issued with a Certificate of Occupancy dated 27th day of June, 1983 and registered as No.30/30/2514 of the Lands Registry in the Office at Ibadan.
(ii) That the plaintiff relied on a document titled "Agreement For Grant of Land" dated the 16th day of January, 1978, for the grant of the said Certificate of Occupancy.
(iii) That the grantors of the purported grant were-
(1) Oba Omolade Adeyokunnu (the Loja of Osu)
(2) Chief Daniel Adedeji Ojo (the Ejemo of Osu)
(3) Chief Samuel Ogunkolade (the Odofin of Osu)
(4) Chief Ezekiel Ayeni Olowolofu (the Salaro of Osu)
(5) Chief Emmanuel Ajileye (the Elemoso of Osu).
(iv) That the purported grant was made for themselves and on behalf of Osu Community.
(50) The defendant avers that the purported grant was a fraudulent one in that:-
(i) Both the grant and the document relating thereto were back-dated apparently with an intention to beat the Land Use Act of March 29, 1978.
(ii) One of the purported grantors, Chief Samuel Ogunkolade was a stark illiterate who could neither write nor read but whose signature was forged on the document. This apart, the said Chief Samuel Ogunkolade had been totally and perpetually blind for over 10 years ago to be able to play and part with regards to the document.
(iii) It was further revealed that the purported "Agreement for Grant of Land" was prepared by one Emmanuel Adeyeye Adelekun, A Solicitor & Advocate of B.41 Okesa Street, Ilesa, whereas the address of the said solicitor should have read A.158A Isinkin/Isokun Street, Ilesa, if the document was actually prepared on 16-1-78 because Mr. Emmanuel Adeyeye Adelakun was at all material times engaged in the Chambers of S. Olu Aoko at A.158A Ishinkin/Isokun Street, Ilesa, and did not set up his own personal Chambers or Office until sometimes in 1980 when he broke off from Mr. S. Olu Aoko 's Chambers and took up a premises at B.41 Okesa Street, Ilesa.
(iv) When Mr. Emmanuel Adeyeye Adelekun broke off from the Chambers of Mr. S. Olu Aoko, Solicitor & Advocate, of A.158A Isinkin/Isokun Street, Ikesa, he first settled at Adeti Street, Ilesa from where he finally moved to B.41 Okesa Street, Ilesa sometimes in 1980. The "Agreement For Grant of Land" therefore must have been prepared when Mr. E.A. Adelakun moved into his B.41 Okesa Street, Ilesa premises sometimes in 1980 and not on 16-1-78.
(51)The defendant avers that the grantors of the plaintiff have no community land at Osu which they can grant to anybody.
(52)The defendant says neither the Loja of Osu nor the entire Osu community have any Community land at Osu.
(53) The defendant therefore relies on the maxim "Nomo dat quod non habet" and says that the grantors of the plaintiff have nothing to grant to the plaintiff.
(54) With regards to paragraph 11 of the plaintiff's Statement of Claim, the defendant says that the land in dispute has been declared unsuitable for a petrol station and as a result the plaintiff could not obtain any approved plan from the Atakumosa Local Planning Authority for the purpose of erecting any petrol station thereon.
(55) The defendant says with regards to paragraph 10 of the plaintiff's Statement of Claim that the defendant would not know that the land advertised has any bearing with his own land by reason of the following facts:-
(i) The boundary was not described as contained in the document on the "Agreement For Grant of Land".
(ii) The area of the two lands are different. The defendant's land measured approximately 1523.430 square metres while the purported land of the plaintiff measured approximately 2787.856 Metres.
(iii) The plaintiff's land is described as being along Ife Road, Isale Omi Area, Osu while the defendant's own land is at Arikese/Ahere Street, Oke-Omi along Ilesha/Ife road, Osu. There is no place known, called, described and being referred to as "Isale-Omi" at Osu.
(56) WHERE OF the defendant says that the plaintiff's claim is speculative, frivolous, misconceived and an abuse of the processes of Court and should therefore be dismissed with heavy costs.''
In the face of the extensive and highly detailed statement of defence, the plaintiff did nothing more to his Statement of Claim. When trial therefore commenced, the defendant (now respondent) not only joined issue with the plaintiff on the following:-
(I) that the Osu community had no right to make any grant of land to the plaintiff as averred in the statement of claim;
(2) that the respondent's father had been in possession of the land in dispute since 1936 due to allocation to him by Ogboni settlers at Osu to which set of settlers from Ilesha he belonged;
(3) that the Oloja of Osu by tradition could not make the grant he purported to make to the plaintiff; in fact the institution of the Oloja of Osu is of recent origin, new, the incumbent who purported to make the grant in 1978 to the plaintiff was the second Oloja sent by Owa of Ijeshaland and chosen from Odole family of Ilesha. It was contended therefore that there was no hard customary evidence that the Oloja could grant any land at Osu.
(4) that Osu is not an old town but a mere settlement of recent time as frontier of Ijeshaland.
but also, in the statement of defence raised serious issues that remain up to now undisputed. Inter alia, he averred that all natives of Osu came from Ilesha in seven distinct groups to wit:-
(1) Arikese Akere, of Ogboni family, Ilesa, who control the area where the disputed land is situated.
(2) Ogidigbasa Aguja (of which the respondent's grandfather was the head i.e. Ejewo Aguja between 1941 and 1942). They came from Okesa, Ilesha and the group was made up of either Obanla Chieftaincy or Ejeme Chieftaincy.
(3) The Afo/Ikobi descendants who settled at Ikobi and were direct descendants of Owa Obokun Adimula of all Ijeshas.
(4) The Imelejo descendants who settled at Imelejo ward of Osu.
(5) Relations of Loro family of Ilesha called IIo who are at Ibo, Osu.
(6) A group that came from the families Odole and Arapate of Ilesha and referred to as Obanfon group.
(7) The group that has two branches Elemoso and Ajido descendants.
All these groups according to the respondent, settled in areas of Osu and the quarters of Osu where they stay bear their respective ancestral homes' names. Perhaps for administrative convenience, the Owa Obokun Adimula (for judicial notice, the Owa of Ijeshaland) seeing Osu prospering and growing decided to have coordinator of the activities of the various groups. He then appointed one of his children as the head of the town with the title of Loja. The present Loja, Omolad